The phoney land grab call

Cape Town – Were he alive today, Arthur Chaskalson, our first chief justice, would probably be having a near apoplectic fit at the debate about expropriation of land with compensation. Shortly before he died, he was extremely annoyed at the then raging debate about whether the “willing buyer, willing seller” principle applied.

“There is no such provision in the Constitution,” he told me in an interview shortly before he died. He added: “I really wish people would read what is in the Constitution.”

He would doubtless say the same today about the claims by the Economic Freedom Fighters (EFF) that the Constitution should be amended to allow for the expropriation of land without compensation. Because Section 25 of the Bill of Rights allows this. And not only in relation to land, but to all property.

This makes the provisions in the Bill of Rights regarding expropriation more radical and far-reaching than the populist calls for the takeover of undefined “land”. Such demands are, in any event, ahistorical, since, apart from anything else, they take no account of pre-colonial conquests.

However, there is a crucial Constitutional proviso that such expropriation should not be “arbitrary” and that it must accord with the “law of general application”. In other words, any such expropriation must be “reasonable and justifiable in an open and democratic society”.

This underscores the concept that the law without justice is tyranny – that the law is supposed to be a set of fair rules that should be applied equally to all without favour or prejudice. The fact that this does not happen is not the fault of the law, but of its application.  

As matters now stand, South Africa has a Bill of Rights that accords equal rights to all citizens and makes the equal treatment of all a legal requirement. However, the social and economic reality in the country means that those with greater economic and political power can - and do - distort, ignore and manipulate legal processes in their favour.

But such biased and distorted applications of the cardinal Constitutional principle of equal rights can be seen to be unjust and can - and should - be resisted in every way possible. The EFF's demand for land seizure across the board without compensation, now apparently supported by President Jacob Zuma, is just such a distortion: a call to exercise power without justice. In other words, tyranny.

Such calls may score cheap populist political points, but they are phoney. Section 25 of the Bill of Rights makes the the public interest the over-riding consideration when expropriating any property. Where any compensation is ruled appropriate, “the time and manner of payment” has only to be “just and equitable”.

However, any compensation should take account of what the property is being used for, the history of its use, as well as the market value. Crucially, in the historical context of apartheid, “the extent of direct state investment and subsidy in the acquisition and capital improvement” must be considered.

So it would be reasonable, for example, to expropriate land without compensation if it was bought with state funding and left fallow and undeveloped. But, critically, land should not be the only issue.

As the Bill of Rights states: “Property is not limited to land.” And it makes clear that the public interest includes commitment to not only land reform, but also to “bring about equitable access to all South Africa’s natural resources”.

Here is a clear echo of radical clauses of the Freedom Charter, in particular: “The mineral wealth beneath the soil, the banks and monopoly industry shall be transferred to the ownership of the people as a whole.” And, presumably, it could be ruled legitimate to pay any compensation deemed appropriate out of future profits.

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